Our New Look

We have changed the template for this weblog, in pursuit of aesthetic improvement and general legibility. We're happier with the new look, but we will consider bowing to readers' views, if there's a hue and cry to return to the old format.

Unfortunately, the old Haloscan comments have fallen into oblivion as part of the changeover. There weren't too many comments anyway, and few seemed intended for posterity. We do regret the loss of Ted Frank's verse on the authorship of expert reports. With any luck, he still has a copy and will re-post it. The comment function is now handled by Blogger.

The old permalinks still appear to work, and we're still evaluating what to do about our blogroll. Stay tuned to this channel for breaking developments.

Update: Whoops. Still a few bugs. To have Blogger handle the comments, apparently we have to let Blogger create post-specific html pages, and when Blogger publishes those, it sets the permissions wrong for some reason, which means that unless and until we can fix that problem or reset permissions for each post manually, the comments won't work, and the new permalinks will be inoperative for good measure. We'll have to think about this; among other issues, this may generate more html pages at the site than Atomz will index for free. Maybe we can set up filters so Atomz will leave those pages alone, or maybe we'll keep things simple by going back to the Haloscan comments. But hey! At least you can read the entries now.

Double Update: Okay. We've fixed the permissions problem and set up the Atomz search masks. Comments and permalinks seem to be working. Now then, did you notice that little envelope icon under each post? It lets you e-mail the post to your colleagues. Go ahead. Give it a try. Your colleagues love extra mail in their inboxes.

Triple Update (9/30/04): Hooray! Ted Frank's poem was picked up at The Witness Box, and so we've been able to re-post it.

Why We Don't Blog About Politics

At first glance, we thought this Beldar post on John Kerry's legal career must be some kind of parody. After all of the recent press hype about how political bloggers are changing the face of American democracy -- hype too often echoed with an air of unseemly self-congratulation in the blogosphere itself -- it would be a welcome respite to see bloggers show some capacity for self-deprecatory humor. Yes, maybe this really is the medium that will finally bring the corporate media monopoly to its knees and restore an actual voice to upper-middle-class, computer-owning, electricity-bill-paying citizens. On the other hand, maybe there are only about fourteen minutes of blogging left before it goes the way of ham radio, in which case the best we could do would be to be remembered, by a few, for our grace, wit, and charm.

Alas, it emerges, on careful reading, that Beldar is not in fact poking gentle fun at bloggers grown so full of themselves as to confuse their own febrile polemic with investigative journalism. He appears to be perfectly serious, and his apparent ambition is to inject a whole new theme into the news cycle. For all we know, the press will oblige, in which case we can look forward to weeks of news stories about why John Kerry studied law at Boston College rather than Harvard, and what grades he received in his law school courses, and whether we really want a president who won honors in moot court, rather than on law review. Oh, and expect to hear that it would be a crime for Kerry to practice law right now. His license is on inactive status, you see, and Massachusetts would treat him as committing unauthorized practice unless he restored it.

Let those who disparage weblogs take note: If this all becomes the topic of wall-to-wall commentary on the Fox News Channel, you'll have a blogger to thank.

We're off to take a shower.

Daubert and Pravda

Should general acceptance suffice to sustain a scientific claim? If so, how general must the acceptance be? Lawyers aren't the only ones with a stake in these questions. The Census Bureau should be interested too. According to Pravda, "A group of American scientists believes that underground cities exist on Earth in the fourth dimension."

5th Circuit Upholds Exclusion of Polygraph

In an unpublished opinion, the Fifth Circuit has upheld the exclusion of exculpatory polygraph evidence in a criminal trial. "There was no plain error, as the record indicates that [the defendant] failed to establish that the examiner's testimony was relevant and that polygraph exams were accepted in the scientific community." See United States v. Lewis, No. 04-10102 (5th Cir. Sept. 22, 2004) (Garza, DeMoss, & Clement, JJ.).

Jury Selected for Trial of Larry "No Relation" Stewart

According to AP dispatches, a jury of eight men and four women was selected yesterday for the perjury trial of Larry "No Relation" Stewart, the Secret Service lab director who stands accused of giving false testimony as a prosecution witness in the Martha Stewart trial.

Update: From the opening statements and the first day's testimony, it appears that Mr. Stewart is pursuing the venerable "sex-tinged grudge" defense.

Forensic Document Examiners Enjoy Day in Sun

We went to college in the immediate aftermath of Watergate, when everybody wanted to be a journalist. In the wake of the 60 Minutes imbroglio, will America's youth now swarm to careers as forensic document examiners?

7th Circuit Upholds "Summary" Testimony from IRS Expert

The Seventh Circuit published a decision yesterday upholding "summary" testimony from an IRS agent in a tax evasion trial. From the opinion:

We believe Agent Welch primarily testified within his role as a summary witness. However, we acknowledge that, in such a case as the present, where an IRS Revenue Agent summarizes the evidence for purposes of establishing the tax consequences, the line between summary testimony and expert testimony is indistinct. Given the assistance such an individual can provide to the jury, it has not been unusual in previous cases for an IRS agent to testify as an "expert summary witness." See United States v. Moore, 997 F.2d 55, 58 (5th Cir. 1993); United States v. Mohney, 949 F.2d 1397, 1406 (6th Cir. 1991); United States v. Bosch, 914 F.2d 1239, 1242 (9th Cir. 1990); United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir.), vacated in part on reh'g., 821 F.2d 1034 (5th Cir. 1987); see also United States v. Benson, 941 F.2d 598, 615 (7th Cir. 1991) (Kanne, J., dissenting) ("A summary witness need not necessarily be an expert, but experts in accounting and other disciplines regularly give summary evidence of the sort envisioned by Federal Rule of Evidence 1006." (citing 5 D. Louisell & C. Mueller, Federal Evidence § 599, at 540 (1981))), mandate recalled and amended by 957 F.2d 301 (7th Cir. 1992)....

Here, Agent Welch analyzed the stock sales and described the income tax consequences. Although he was not proffered as an expert witness, his qualifications were in evidence. Those qualifications included eighteen years of service with the IRS as a revenue agent, a bachelor's degree in accounting and a master's degree in taxation. While employed by the IRS, he completed additional classes in taxation, specialized training and continuing professional education. At the time of trial, he had conducted approximately two hundred tax audits and had reviewed several thousand audits of other revenue agents. Agent Welch was therefore qualified to express "an opinion as to the proper tax consequences of a transaction" and of the "transaction itself, which necessarily precedes his ... evaluation of the tax consequences." [United States v. Windfelder, 790 F.2d 576, 581 (7th Cir. 1986).]

See United States v. Pree, No. 03-1516 (7th Cir. Sept. 14, 2004) (Coffey, Ripple, & Kanne, JJ.).

4th Circuit Upholds Expert Testimony on Hizballah

The main significance of the Fourth Circuit's en banc decision last week in United States v. Hammoud, No. 03-4253 (4th Cir. Sept. 8, 2004), was its holding that the Supreme Court's recent Blakely decision does not invalidate the federal sentencing guidelines.

But the court also struck what seems a major blow for social scientists facing Daubert objections. At Hammoud's trial for providing material support to a foreign terrorist organization, the prosecution offered testimony from an expert on Hizballah. The district judge rejected Hammoud's arguments that the testimony was unreliable, and the Fourth Circuit affirmed, quoting with apparent approval the expert's explanation of his methods:

Well, we're talking about a social science here. This is not scientific research. Basic academic intellectual research combined with the techniques I was taught in ... various courses I took as an analyst for the government both taught that the best way to go about making sense of something in the social sciences is to collect as much information as possible and to balance each new incoming piece of information against the body of information that you've built to that point.

Sounds like something of a runaway methodological train to us. We'll wait and see how this ruling is applied in civil cases within the Fourth Circuit. Thanks to Steve Minor for drawing this ruling to our attention.

3d Circuit Upholds Exclusion of Survey in Trademark Case

The Third Circuit has published an opinion upholding the district court's exclusion of survey evidence in a trademark infringement case, holding that in "reverse confusion" cases, where a larger and more powerful company has allegedly infringed the mark of a smaller and less powerful senior owner, the universe of survey respondents should comprise only the customer base of the senior owner. The court also upheld the trial court's determination that the survey suffered from methodological flaws. See Citizens Financial Group, Inc. v. Citizens National Bank of Evans City, No. 03-2868 (3d Cir. Sept. 9, 2004) (Scirica, Rosenn, & Greenberg, JJ.).

NC Appellate Court Approves Extrapolation Rate for Blood Alcohol Levels

At 1 p.m., a North Carolina driver is proceeding south in a northbound lane and appears to be slumped over his steering wheel, as though asleep. His vehicle collides with another. Police are summoned. They detect a strong odor of alcohol, and perform a field sobriety test, on which the driver fares poorly. He is arrested for DWI and taken to the station. At 3:18 p.m., he is given a breathalyzer test, which shows a blood alcohol level of 0.05%. The legal limit in North Carolina is 0.08%. Can the driver breathe even a modest sigh of qualified relief?

No, he cannot. North Carolina (which follows a version of Daubert) already permitted extrapolation from the driver's blood alcohol level at the time of the breathalyzer test to the probable level at the time he was still driving his vehicle. Now the North Carolina Court of Appeals has held that a standard average blood alcohol reduction rate of 0.0165/hour may reliably be used. The Winston-Salem Journal has the story (which inaccurately reports, however, that the court's decision on this point was unanimous). For the opinion itself, see State v. Taylor, No. COA03-334 (N.C. App. Aug. 17, 2004).

New Alabama Decisions

Having been detained, as we occasionally are, by the actual practice of law, we have fallen somewhat behind in posting on recent appellate decisions made known to us by our state law correspondents. We will try to catch up alphabetically. Courtesy of Edward Still, our page on Alabama decisions now boasts summaries from two new cases. In Minor v. State, No. CR-00-1300 (Ala. Crim. App. Aug. 27, 2004), the Court of Criminal Appeals held that testimony from a physician in a criminal proceeding need not be tested under Daubert or Frye. And in Vesta Fire Ins. Co. v. Milam & Co. Constr., Inc., No. 1021196 (Ala. Aug. 27, 2004), the Alabama Supreme Court refused an invitation to adopt Daubert for the second time in one month.

That still leaves news to report from Illinois, Kentucky, Michigan, and Texas. Stay tuned.

Daubert Sonnet of the Week

The right thing is to let the expert write the report himself. But sometimes the voice of temptation does creep in . . .

My expert wants to write his own report.
He thinks he knows exactly what to say
To stave off every possible retort.
It’s true he has a fancy resume
And quite bestrides his world of academe,
Much held in awe by friend and foe alike.
But I do fear that if he sets the theme,
The other side will promptly move to strike.
Of course, I know they’ll do that anyway,
But we might have a chance, if I could pen
The testimony that could save the day.
Why be content with dreams that might have been?
It’s sauve qui peut, in this economy.
I pay this guy. Screw his autonomy.

Update 9/6/04: As readers of Overlawyered and Point of Law were already aware, Ted Frank is an accomplished craftsman of thoughtful prose. But who knew he could also rhyme and scan? Check the comments to this post to hear the voice of conscience wax poetic.

Update 9/29/04: Sadly, we lost what is believed to be Ted Frank's collected poetic oeuvre on Daubert when we went over to the new format today. Perhaps he still has a copy and will post it again. Or perhaps he'll pen another.

Update 9/30/04: Ted Frank's poem was picked up at The Witness Box, and so we've been able to re-post it. See the comments.

8th Circuit Approves DNA Kit Evidence

The Eighth Circuit has sustained a trial court's decision overruling a criminal defendant's Daubert objection to the prosecution's use of the "Profiler Plus" and "Cofiler" multiplex kits for DNA testing. The defendant had objected that although STR DNA profiling methodology was sound, the kits did not implement it in a reliable manner. From the Eighth Circuit's opinion:

In applying the reliability requirement of Daubert, this court has drawn a distinction between, on the one hand, challenges to a scientific methodology, and, on the other hand, challenges to the application of that scientific methodology. In United States v. Beasley, 102 F.3d 1440, 1445-48 (8th Cir. 1996) (Beasley), cert. denied, 520 U.S. 1246 (1997), the district court admitted DNA evidence based upon the polymerase chain reaction (PCR) method of DNA typing, derived by using the DQ [alpha] Amplitype and Polymarker test kits. On appeal, the defendant in Beasley argued that the PCR method failed to meet Daubert 's reliability standard and, moreover, that the laboratory which applied the PCR DNA typing method failed to observe necessary "special precautions." Id. at 1448. Upon review, this court agreed with the district court's assessment that the PCR method was sufficiently reliable under Daubert to admit the DNA results derived therefrom. See id. at 1446-47. As for the allegedly faulty application of the PCR method, the district court had opined that "these alleged deficiencies ... go to the weight of the DNA evidence, not to its admissibility," and this court again agreed. Id. at 1448. As our court's Beasley opinion explains, the rule in this circuit is that, when the application of a scientific methodology is challenged as unreliable under Daubert and the methodology itself is otherwise sufficiently reliable, outright exclusion of the evidence in question is warranted only if the methodology "was so altered [by a deficient application] as to skew the methodology itself." Id. (internal quotation marks and ellipsis omitted) (quoting United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993) (Martinez) (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 858 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991)), cert. denied, 510 U.S. 1062 (1994)).

See United States v. Gipson, No. 03-2292 (8th Cir. Sept. 1, 2004) (Melloy, McMillian, & Colloton, JJ.).